Faoa (Migration)

Faoa (Migration) [2020] AATA 3295 (22 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Pesamino Faoa
CASE NUMBER:  2008246
DIBP REFERENCE(S):  BCC2020/1512089
MEMBER:Michael Ison
DATE:22 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 22 May 2020 at 11:13am
CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – immigration status – unlawful non-citizen – grounds for seeking visa – acceptable arrangements to depart Australia – substantive visa application – pending judicial review – consequential cancellation – court declaration – request for ministerial intervention – compelling need to work – criminal detention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 73, 195
Migration Regulations 1994 (Cth), Schedule 2, cls 050.211, 050.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).
Background
The applicant is Mr Pesamino Faoa, a 29 year old Tongan national. At the time of this decision the applicant does not hold a substantive or bridging visa and is being detained in immigration detention as an unlawful non-citizen. The applicant seeks a Bridging E visa so he can be released from immigration detention.
The applicant applied for the visa on 8 May 2020. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 or 051 visa, which are set out in Parts 050 and 051 of Schedule 2 to the Migration Regulations (the Regulations). Relevantly to this matter, the primary criteria for a Subclass 050 visa include cl.050.212 which provides 17 separate criteria, each of which provides a ground for the grant of a Subclass 050 visa. The primary criteria for the grant of a Subclass 051 visa include cl.051.211 which provides five separate criteria, each of which provides a ground for the grant of a Subclass 051 visa.
The Tribunal discussed the applicant’s immigration history and present circumstances with the applicant during the Tribunal hearing. The applicant:
·arrived in Australia on 17 October 2013 as the holder of a Special Program (Temporary Working Holiday) (Subclass 416) visa that was valid to 1 May 2014;
·subsequently ceased employment with his sponsoring employer causing the Department on 24 January 2014 to issue a Notice of Intention to Consider Cancellation of the applicant’s visa as the applicant no longer met the requirements to hold a Subclass 416 visa. The applicant did not respond to the Department’s notice;
·had his Subclass 416 visa cancelled on 7 February 2014;
·did not apply for another visa and did not depart Australia;
·over 5 years later, in December 2019, approached the Department and was granted a Bridging E visa on departure grounds. This Bridging E visa was valid to 20 January 2020, but the applicant did not depart Australia;
·on 2 May 2020 was taken into criminal custody in New South Wales for allegedly assaulting his ex-partner and breaching an apprehended violence order (AVO);
·was released from prison on 4 May 2020 and detained in immigration detention;
·applied for the Bridging E visa that is the subject of this review on 8 May 2020;
·had his application refused on 12 May 2020;
·applied to the Tribunal to review the primary decision on 14 May 2020;
·has worked as a casual concreter but is presently unemployed due to the COVID-19 pandemic;
·generally lived with an aunt in Colyton, which is a suburb in Sydney;
·has a five year old son in Australia. The applicant’s son and ex-partner, who is the mother of the applicant’s son, are both Australian citizens;
·is the father of the unborn child that his ex-partner is currently pregnant with and the birth of that baby is due in August 2020;
·does not have any savings or assets and while unemployed has been supported by his aunt;
·is awaiting the hearing of the criminal charges arising from the May 2020 incident; and
·is the respondent to an AVO that remains current while the applicant’s criminal matters remain unresolved. The AVO prevents the applicant from approaching or communicating with his ex-partner and he thinks also his son, although he could not recall seeing his son’s name on the AVO.
The primary decision
The applicant provided a copy of the primary decision prior to the Tribunal hearing.
The decision to refuse to grant the visa was made on 12 May 2020 on the basis that the applicant did not meet any of the criteria in cl.050.212 or in cl.051.211 for the grant of a Subclass 050 or Subclass 051 visa respectively.
The Tribunal hearing
The applicant appeared before the Tribunal on 21 May 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video conference and telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages. The interpreter participated in the hearing by telephone.
During the hearing the applicant confirmed to the Tribunal that he had read and understood the primary decision. The Tribunal explained to the applicant that the determinative issues before the Tribunal are whether the applicant meets any of the grounds for the grant of a Subclass 050 visa or Subclass 051 visa and if the Tribunal finds the applicant is eligible to be granted a Bridging E visa, whether the applicant will comply with the conditions the Tribunal deems reasonable to impose on such visa.
The applicant did not claim to meet any of the 17 specific grounds in cl.050.212(2)-(9) or to meet cl.051.211 which refers to rr.2.20(7)-(11) and did not provide any written submissions or written evidence to the Tribunal. As a result, the Tribunal sent the applicant a list of questions in its letter inviting the applicant to attend the Tribunal hearing, addressing each of the criteria in cl.050.212. The Tribunal then discussed these questions and the application of each ground with the applicant during the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the time of decision criteria for the grant of a Bridging E visa in cl.050.211 and cl.050.212 or cl.051.211 of Schedule 2 to the Regulations.
Immigration status of the applicant - cl.050.211
Clause 050.211 provides:
(1)The applicant is:
(a)  an unlawful non-citizen; or
(b)  the holder of a Bridging E (Class WE) visa; or
(c)  the holder of a Subclass 041 (Bridging (Non-applicant)) visa.
(2)The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).
The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.
The applicant’s evidence to the Tribunal is that he is a citizen of Tonga and does not hold a valid visa to be in Australia. The Tribunal accepts this evidence and finds that the applicant is an unlawful non-citizen.
The Tribunal is satisfied that the applicant satisfies the requirements of cl.050.211 because at the time of application the applicant:
·Was an unlawful non-citizen as required by cl.050.211(1)(a); and
·Was not an eligible non-citizen of the kind set out in r.2.20(7), (8), (9), (10), (11) or (17) as required by cl.050.211(2).
Therefore, the applicant meets cl.050.211.
The grounds for seeking the visa - cl.050.212
At the time of the visa application, the applicant must meet one of the alternatives set out in cl.050.212(2)-(9). The applicant must continue to satisfy this criterion at the time of decision: cl.050.221.
As noted above, the applicant did not specify which subclause of cl.050.212 he meets. The Tribunal reviewed with the applicant whether he met any of the 17 subclauses in cl.050.212. For the reasons below, the Tribunal found that the applicant does not meet any of the requirements in cl.050.212 for the grant of a Subclass 050 visa.
Acceptable arrangements to depart Australia
Subclause 050.212(2) is met if the Minister, or the Tribunal on review, is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.
The applicant’s evidence to the Tribunal is that he needs to remain in Australia to be a father to his son and unborn child and he has no intention of departing Australia.
The Tribunal finds that the applicant is not making and is not the subject of acceptable arrangements to depart Australia. For these reasons, the Tribunal is not satisfied at the time of application or at the time of this decision that the applicant was making or was the subject of acceptable arrangements to depart Australia. Therefore the applicant does not meet cl.050.212(2).
Substantive visa application
Subclause 050.212(3) is met if the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or the Tribunal is satisfied that the applicant would apply for such a visa within a period specified for doing so.
‘Substantive visa’ in this context means a visa other than a bridging visa, criminal justice visa or enforcement visa: s.5(1) of the Act. An application is ‘finally determined’ when it is no longer subject to merits review under Part 5 or Part 7 of the Act, or any prescribed period within which a merits review application must be submitted has passed without application being made: s.5(9) of the Act.
The applicant told the Tribunal he has not applied for a substantive visa but when he engaged with the Department in December 2019 and was granted a Bridging E visa a ‘case manager’ at the Department told the applicant he would have to wait 29 days and then could apply for a substantive visa.
The Tribunal asked the applicant what substantive visa he intended to apply for. The applicant responded that he will have to contact the case manager and ask her what visa he is supposed to apply for.
The applicant told the Tribunal he had been imprisoned on domestic violence related crimes against his ex-partner after she reported him to the police in March 2017 and he was imprisoned in December 2018, spending “six or seven days short of a year” in prison. The applicant said when he was released from prison in December 2019 he approached the Department and was told by the case manager, in addition to waiting the 29 days, it would cost the applicant AUD12,000 to lodge an application for a substantive visa and he should come back and see the case manager when he has the money.
The applicant could not tell the Tribunal what sort of substantive visa he was given this advice in relation to.
This evidence of the applicant does not seem plausible to the Tribunal as the applicant was granted a Bridging E visa on the grounds of departing Australia and in those circumstances the Tribunal does not accept a Departmental officer would advise the applicant to apply for a substantive visa or to wait 29 days before doing so.
The applicant’s evidence was that when granted the Bridging E visa he never intended to depart Australia and instead focused on saving the AUD12,000 needed to get a visa to regularise his immigration status in Australia. As the applicant had just come out of prison he said he found it hard to obtain work and would get short-term jobs every now and then and would support his son, but did not earn enough to have savings.
The applicant told the Tribunal when the COVID-19 global pandemic caused a shut-down of community movement and activity it became even harder to find work, with his last paying job being in the second week of February 2020.
The applicant told the Tribunal he is separated from his ex-partner and there is an AVO in place that prevents him from communicating with her, but she would like to resume her relationship with the applicant. While the AVO remains in place it is difficult for the Tribunal to envisage how the applicant and his ex-partner could resume their relationship.
The applicant is also affected by s.195 of the Act which provides that a detainee has two working days, or five working days after notifying an officer of his intention to apply within those two working days, to apply for a visa, subject to certain procedural safeguards, of which failing to comply with those timeframes, means the only visas a detainee may then apply for is a Bridging visa or a Protection visa. The applicant has not applied for any substantive visa within the specified timeframes and applied for the Bridging E visa the subject of this review. The Tribunal asked the applicant about the following findings of the delegate:
I note that you did not indicate during the interview conducted on the day following your detention that you intend to lodge an application for a substantive visa nor did you seek an extension under section 195 of the Act to lodge an application for a substantive visa. You only indicated that you intend to lodge an application for a BVE.
You have now passed the section 195 timeframe to lodge an application for a substantive visa from detention.
The applicant accepted that he is out of time to apply for a substantive visa, other than a Protection visa.
The Tribunal asked the applicant if he intended to apply for a Protection visa. The applicant replied yes. The Tribunal asked on what grounds. The applicant replied that he did not understand and asked the Tribunal to explain that to him. The applicant told the Tribunal the reason he wants to apply for a Protection visa is so that he can get out of immigration detention, get a private lawyer and see if he can apply for a visa on the ground he needs to be with his son and unborn daughter and to also look after his aunt who is 71 years of age.
The applicant gave evidence that there is no reason that he cannot return to Tonga and that his parents, six sisters and two of his three brothers all live in Tonga. The Tribunal accepts this evidence.
The Tribunal finds that the applicant has not made and does not intend to make application for a substantive visa and could not make a valid application for a substantive visa (other than a Protection visa) even if the Tribunal gave the applicant time to do so. The applicant’s evidence indicates he does not fear significant or any harm if he returns to Tonga. The applicant told the Tribunal he is able to return to Tonga but does not wish to do so because his son and unborn daughter are in Australia which leads the Tribunal to conclude that the applicant is not eligible for and does not genuinely intend to apply for a Protection visa.
Accordingly, the applicant does not meet cl.050.212(3).
Judicial review, merits review, s.137K revocation
Judicial review – onshore substantive visa refusal
Subclause 050.212(3A) is met if the applicant or the Minister has applied for judicial review of a decision to refuse the applicant a substantive visa of a type that can be granted while in Australia, and the judicial review proceedings have not been completed.
Subclause 050.212(4) is met if:
Judicial review – substantive visa decision (other than refusal)
(a)the applicant has applied for judicial review of a decision in relation to a substantive visa (other than a decision to refuse the visa); or
(aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application (other than a decision relating to refuse the visa); or
Visa cancellation – merits review / s.137K revocation
(b)the applicant has applied for merits review of a decision to cancel a visa; or
(ba)the applicant has applied under s.137K for revocation of the cancellation of a visa; or
(bb)the applicant has applied for merits review of a decision under s.137L not to revoke the cancellation of a visa; or
(c)the Minister (or Tribunal) is satisfied that the applicant will make an application of a kind referred to in cl.050.212(4)(b) or (ba) or (bb); or
Judicial review – validity of a law
(d)the applicant has applied for judicial review of the validity of a law that affects their eligibility to apply for a substantive visa or their entitlement to be granted or continue to hold a substantive visa.
Judicial review – member of the family unit
Subclause 050.212(4AA) is met if the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in cl.050.212(3A)(b) or (4)(a) or (4)(aa) or (4)(d), that other person is not a party to a representative proceeding, and the applicant made a combined substantive visa application with that other person’s application.
Judicial review – Class BC or BI visa refusal
Subclause 050.212(9) is met if a decision to refuse the applicant (or a member of the family unit who has made a combined application) a Class BC or BI visa is the subject of valid judicial review proceedings that have not been completed, and the applicant (or member of the family unit) does not satisfy cl.010.211(6)(c) for the grant of a Bridging A (Class WA) visa.
The applicant’s evidence to the Tribunal is that none of the judicial review or cancellation grounds of eligibility for a Bridging E visa in clauses 050.212(3A), (4), (4AA) or (9) apply to the applicant. The Tribunal accepts this evidence.
Accordingly, the applicant does not meet cl.050.212(3A), cl.050.212(4), cl.050.212(4AA) or cl.050.212(9).
Consequential cancellation (review/revocation of primary cancellation)
Subclause 050.212(5) is met if the applicant held a visa that was cancelled under s.140(1) or (3) because another person’s visa was cancelled, and that other person has applied for review of their visa cancellation decision (or alternatively, the Tribunal is satisfied the other person will make such an application).
Subclause 050.212(5A) is met if the applicant held a visa that was cancelled under s.140(1), (2) or (3) because another person’s visa was cancelled under s.137J, and that other person has applied for revocation of their visa cancellation under s.137K or has applied for merits review of a non-revocation decision made under s.137L (or alternatively, the Tribunal is satisfied the other person will make such an application).
The applicant’s evidence to the Tribunal was that none of the review or revocation processes in subclauses 050.212(5) and (5A) apply to his circumstances. The Tribunal accepts this evidence.
Accordingly, the applicant does not meet cl.050.212(5) or cl.050.212(5A).
Court declaration / review of citizenship decision
Subclause 050.212(4AAA) is met if the applicant has applied for a declaration from a Court that the Migration Act does not apply to the applicant, or has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act, and those proceedings have not been completed.

Subclause 050.212(4AB) is met if the applicant is a member of the immediate family (as defined under r.1.12AA) of a person who meets the requirements of cl.050.212(4AAA), or is a brother or sister (who has not turned 18) of a person who meets the requirements of cl.050.212(4AAA) and who has not turned 18.
The applicant’s evidence to the Tribunal was that none of the requirements in subclauses 050.212(4AAA) and (4AB) apply to his circumstances. The Tribunal accepts this evidence.
Accordingly, the applicant does not meet cl.050.212(4AAA) or cl.050.212(4AB).
Ministerial intervention
Subclause 050.212(5B) is met if the applicant is a person to whom s.48A of the Act applies, and the applicant has made a request to the Minister to determine under s.48B that s.48A does not apply. There must not have previously been such a request under s.48B in relation to the applicant, or a request to the Minister for the exercise of the Minister’s power under ss.345, 351 or 417 of the Act.
Subclause 050.212(6) is met if the applicant is the subject of a decision that relates to a visa application made in Australia, or a visa cancellation and has made a request to the Minister to substitute a more favourable decision under ss.345, 351 or 417 of the Act. The decision in question must be a decision for which the Minister has the power to substitute a decision under ss.345, 351 or 417, and there must not have previously been such a request, or a request for a determination under s.48B of the Act. _
Subclause 050.212(6AA) is met if the Minister has substituted a decision under ss.345, 351 or 417 of the Act, but the visa has not been granted because of a visa cap in operation under s.85 of the Act.
Subclause 050.212(6B) is met if the applicant has an outstanding request to the Minister under ss.345, 351 or 417 of the Act made before 1 July 2009, and holds, or has held, a Bridging E visa granted before 1 July 2009 on the basis of the applicant meeting cl.050.212(6A) or, for visa applications made on or after 14 September 2009, cl.050.212(6) or (6A).
The applicant’s evidence to the Tribunal was that he has not made a request to the Minister to intervene in his immigration status or matters in Australia in any respect. The Tribunal accepts the applicant’s evidence. The Tribunal finds that the applicant has not made a request to the Minister in circumstances that would enliven subclauses 050.212(5B), (6), (6AA) or (6B).
Accordingly, the applicant does not meet cl.050.212(5B), cl.050.212(6), cl.050.212(6AA) or cl.050.212(6B).
Compelling need to work
Subclause 050.212(6A) is met if the applicant holds a Bridging E visa that was granted on the basis of meeting cl.050.212(6AA), the applicant is the subject of a favourable exercise of the Ministerial power under ss.345, 351 or 417 of the Act, and the Tribunal is satisfied that the applicant has a compelling need to work.
Subclause 050.212(8) is met if the applicant holds a Bridging E visa that was granted as a result of a valid application for a substantive visa that could be granted onshore and is subject to condition 8101, and the Tribunal is satisfied that the applicant has a compelling need to work.
The applicant’s evidence to the Tribunal was that he does not hold, at the time of this decision, a Bridging E visa. The Tribunal accepts this evidence.
Accordingly, the applicant does not meet cl.050.212(6A) or cl.050.212(8).
Criminal Detention
Subclause 050.212(7) is met if the applicant is in criminal detention, and no criminal justice stay certificate or warrant is in force.
At the time of application for the Bridging E visa that is the subject of this review, being 12 May 2020, the applicant was detained in immigration detention and not criminal detention and at the time of this decision continued to be detained in immigration detention.
Accordingly, the applicant does not meet cl.050.212(7).
The grounds for seeking the visa - cl.051.211
The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant ‘eligible non-citizen’ as required by cl.051.211 of Schedule 2 to the Regulations and as set out in rr.2.20(7), (8), (9), (10) or (11) and therefore does not meet the requirements of cl.051.211.
Conclusion
For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging(Protection Visa Applicant)) visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.
Michael Ison
Senior Member

[2020] AATA 3295

22 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice